Crimes of Terrorism in New York

Crimes of terrorism in New York include some of the most publicized and controversial laws in recent United States history. In New York, these crimes have been expanded and made harsher, particularly since the events of September 11^th, 2001. In reaction to these attacks, the New York Legislature instituted New York Penal Code section 490, which outlines the various offenses related to terrorism.

Federal vs. State Charges

Although the federal government has traditionally enforced crimes against terrorism, New York has added state-level offenses, which allows state enforcement of these types of activities. The laws that punish crimes of terrorism have also expanded the laws against soliciting, providing support, or hindering the prosecution against terrorism.

New York State Definition

The state defines the act of terrorism as any listed act in section 490 that meets all of the listed elements of a violent crime, AND the intent of that violent crime included:

The intent to intimidate or coerce a civilian population;
The intent to influence the policy of a unit of government by intimidation or coercion; or
The intent to affect the conduct of a unit of government by murder, assassination, or kidnapping. (See New York Penal Code 490.05 “Definitions” https://codes.findlaw.com/ny/penal-law/pen-sect-490-05.html)

What are the charges and consequences of being involved in the crimes of terrorism in New York?

If you are charged with any violation involving crimes of terrorism in New York under section 490, it is very important to understand those charges and the potential consequences they may carry. Without the proper knowledge of these offenses, you will be at a disadvantage to protect your rights.

Not surprisingly, New York’s state offenses against terrorism are some of the harshest in the nation, even going so far as for calling for a strengthening of the state’s use of the death penalty. See Legislative Findings section 490.00, which states, “Finally, our death penalty statute must be strengthened so that the cold-blooded execution of an individual for terrorist purposes is a capital offense.”

As you can see, a charge for the crime of terrorism in New York should not be taken lightly.

What are the charges and consequences of being involved in the crimes of terrorism in New York?

As you can see, a charge for the crime of terrorism in New York should not be taken lightly.

Crimes of Terrorism in the State of New York Statutes

The crimes of terrorism in the state of New York rely heavily on the intent of the offense. The intended target or objective of the act is what separates regular violent offenses from what the state deems to be terroristic offenses.

If the intent of the offending party is to intimidate or coerce the general population, influence the policy of a government, or affect the “conduct of a unit of government” the offense(s) may be considered to be “terrorism.” This is outlined in New York Penal Code section 490.25, which also includes the effects offenses of terrorism will have on sentencing.

If you are found guilty of a violation under section 490.25, the court will look at the underlying offense and enhance the penalties dependent upon the level of the underlying offense:

If the underlying offense is a class B, C, D, or E felony, the crime of terrorism will be deemed a violent felony.
If the underlying offense is a class C, D, or E felony, the offense of terrorism will be one level higher than the underlying offense.

For Example

If someone was charged with “aggravated criminal possession of a weapon,” it is considered a class C felony. However, if the person is also charged with terrorism in connection with the “aggravated criminal possession of a weapon” charge, the terrorism charge will be considered a class B felony – which means instead of facing a maximum of 15 years in prison, the terrorism charge would carry a maximum of 25 years in prison.

What Does Section 490 cover?

Section 490 does not just cover acts of terrorism. Section 490 also covers the separate offense of soliciting or providing support for terrorism. This is addressed in two sections of the law. Section 490.1 sets out the crime of “soliciting or providing support for an act of terrorism in the second degree.” In order to prove this charge, the state must establish the following elements:

An individual has the intent
to provide material support or resources to be used
to plan, prepare, carry out, or aid an act of terrorism and;
that person raises, solicits, collects, or provides material support or resources.

Looking deeper at the element of intent, the courts have struggled to define exactly, what intent means in terms of terrorism.

Example

In The People of New York v. Edgar Morales NY 2012, the court struggled with determining whether the defendant had the intent to intimidate an entire population, or whether his actions were more of a localized nature. In Morales, the Defendant was involved in a gang-related shooting that resulted in the death of a ten-year-old girl.

As a result, he was charged with a violation of Section 490.25, the crime of terrorism. The prosecution based this charge on what they alleged was the Defendant’s intent to intimidate other Mexican-Americans and related gangs. Because the court found that Morales’ violent offenses were intended to intimidate a rival gang and not the general “civilian population,” it was not within the scope of the crimes of terrorism in the state of New York.

New York Penal Code 490.15

Similarly, the New York Penal Code section 490.15 establishes the offense of soliciting or providing support for an act of terrorism in the first degree. The difference between a second degree and first-degree charge is one additional element.

If all of the elements of the second-degree offense are met AND the amount of support is in excess of $1000, the offense can then be considered a first-degree offense. For sentencing purposes, this makes the offense a Class C felony, instead of a Class D felony.

Federal Crimes of Terrorism in New York

While New York has state specific charges of terrorism, it is also important to know that the federal government has laws against terrorist activities. Charges can be filed simultaneously with New York state offenses or separately. This means that one act within the state of New York could be subject to two separate terrorism investigations with two separate prosecutions and completely separate charges.

The federal crimes of terrorism in New York have almost identical elements as the New York offenses. The federal law is found in the United States Code Title 18, Part I, Chapter 113B. In order to be charged with a federal terrorism charge, the government must prove a criminal act that also includes the intent to accomplish one of the following:

to intimidate or coerce a civilian population;
to influence the policy of a government by intimidation or coercion; or
to affect the conduct of a government by mass destruction, assassination, or kidnapping.

While the basic elements of the federal law are almost identical to the elements of the New York crimes involving terrorism, the federal law goes much further in depth for international activities.

For Example

Section 2332b defines terrorist activities occurring outside of the borders of the United States but which have an effect on the U.S. population. This is in response to the reality that many threats against the United States may occur outside the boundaries of the United States but still impose the risk to the U.S. population.

Other Crimes Related to the Crime of Terrorism in New York

Charges of the crime of terrorism in New York may be also be accompanied by the offense of hindering prosecution of terrorism in either the first or second degree. This offense is listed in New York Penal Codes 490.3 and 490.35.

Hindering the prosecution of terrorism involves the act of a person rendering criminal assistance to someone who has committed the act of terrorism.

The offense is elevated to a crime of the first degree if the act of terrorism results in the death of another person. An important element of the offense is that the offender must know or believe the person they are assisting committed an act of terrorism actually.

For Example

If Sam commits an act of terrorism and Frank provides Sam with a car so he may escape, Frank can be charged with hindering the prosecution of terrorism only if he knew Sam committed the act of terrorism. If in the example, Frank did not know Sam committed an act of terrorism and unwittingly assisted Sam, Frank cannot be charged with the offense.

Another related offense to the crime of terrorism in New York is the criminal possession or use of a chemical or biological weapon. These set of violations, found in New York Penal Code Sections 490.37-490.55 encompass various scenarios involving the illegal possession or use of so-called weapons of mass destruction.

What is a “Biological Agent?”

These various offenses rely on the definition of biological and chemical weapons found in the definitions section of 490.05. A biological agent is:

Any microorganism, virus, infectious substance, or biological product that may be engineered as a result of biotechnology, or any naturally occurring or bioengineered component of any such micro-organism, virus, infectious substance, or biological product, capable of causing:
death, disease, or other biological malfunction in a human, an animal, a plant, or another living organism;
deterioration of food, water, equipment, supplies, or material of any kind; or
deleterious alteration of the environment.

While possessing these items by themselves do not constitute a crime (after all, these types of products may very well be possessed by labs or for any number of legitimate purposes) the offense requires the additional elements of intent to use these products to cause physical injury or death to the population.

For example, if Sam is a scientist that works in a research hospital and is required to handle the anthrax virus, he is not in violation of the offense. However, if Sam intends to use the anthrax virus in his possession against the public, he has now committed the offense of Criminal possession of a chemical weapon or biological weapon.

Hassan v. The City of New York

An important case, which involves the crime of terrorism in New York, involves a lawsuit filed in Federal Court against the city of New York for unwarranted surveillance of citizens.

As a response to the attacks on September 11^th, 2001 New York not only instituted the state crime of terrorism in New York, it also started an intense campaign of investigating Muslim communities in New York and New Jersey. Some of the methods used by police included are the following:

eavesdropping on conversations
approaching citizens about their views,
designating mosques as potential terrorist organizations.

The lawsuit challenged the extent that investigators could encroach on the rights of citizens and methods used to build terrorism cases.

How was it settled?

The case was settled in 2018 and resulted in revamped methods of investigations and to set guidelines for such investigations. The settlement did not include any admission of wrongdoing by the police but did include small cash settlements to individuals and Muslim groups involved.

Because the investigations strictly relied on the religious status of those being investigated without any regard for other information regarding their potential involvement in terrorist activity, the lawsuit claimed the government through the use of law enforcement was illegally singling out citizens based upon their religion.

This case was important for establishing that although there is a strong public interest in the protection of citizens against terrorist acts, there are limits to how investigations of those offenses may be conducted.

Agencies Responsible for the Enforcement Of Crimes of Terrorism in New York

Almost all law enforcement agencies have some connection with investigating and enforcing the various laws involving terrorism. Since the attacks on New York on September 11^th, 2001, law enforcement agencies have made terrorism enforcement a priority.

In regards to the state offenses found in New York Penal Code 490, local, county, and state police and prosecutor offices are the main agencies responsible for handling these investigations. Of course, the federal government has a strong interest in investigating threats of terrorism, both within the borders and outside of the United States.

Within the United States (and within the state of New York) the Federal Bureau of Investigation, Central Intelligence Agency, ATF, DEA, Secret Service, and Federal Prosecutor’s offices all handle the enforcement of federal level terrorism offenses. It is not uncommon for all of these agencies to work together and share information regarding their investigations.

How are these investigations of terrorism made?

Investigations of these terrorism-related offenses often include the use of the most advanced investigative tools and techniques available. It is not uncommon for enforcement agencies to seek and obtain search warrants, wiretaps, and even subpoenas for obtaining documents and information against anyone they feel may have some involvement with terrorist activities.

The courts, while still obligated to uphold privacy and personal rights of citizens, will typically grant these agencies these types of invasive tools against citizens subject to investigations.

Penalties for the Crime of Terrorism in New York

All offenses classified under New York Penal Code 490 are felony level offenses of various degrees. There are no misdemeanor level offenses of terrorism in New York. This means that any offense of terrorism will carry a minimum of 1.5 years imprisonment, along with the penalties associated with any other related offenses.

In theory, the maximum penalty for the crime of terrorism in New York is the death penalty; however, New York has had a moratorium on the death penalty since 2004. (See In N.Y., Lawmakers Vote Not to Reinstate Capital Punishment http://www.washingtonpost.com/wp-dyn/articles/A47871-2005Apr12.html?noredirect=on). The severity of the consequences of certain terrorism-related charges is discussed below.

What is a violation of 490.25?

For a violation of 490.25, the crime of terrorism in New York, you are likely to face the charges as a class A-I felony. A class A-I felony is the highest level of a criminal offense in New York. This offense includes 25 years to life in prison.

On the lower end of the spectrum under Section 490, a conviction under Section 490.2, making a terrorist threat, is a class D violent felony, which carries 1.5 to 4 years in prison for a first offense Obviously, the penalties can be enhanced based on your own circumstances and history.

For example, the following factors may be used to elevate the charges to something more significant.

Your criminal history and background. If you have a prior history of offenses, particularly violent offenses or similar charges, you are much more likely to face the higher end of the potential sentencing range or even face a higher level felony for your status.
For example, a third offense conviction of making terrorist that threats ups the range to a mandatory 2 to 4 years in prison.
Whether an act of terrorism is carried out and whether the death occurred due to the offense may have a large impact on the penalties faced. Section 490, causing death through an act of terrorism, raises the level of the violation.
Addition of federal charges. While New York has state laws for the crime of terrorism, it is important to remember that there are extensive federal laws against terrorism, which can be charged along with the state charges.
Unlike the state of New York, the federal government does have the death penalty, and the highest-level offenses of terrorism may be eligible for capital punishment.

Contact us for assistance

As discussed above, New York has unique laws involving state crimes of terrorism, which may have serious consequences and have a great effect on your freedom, life, reputation, and status in the community. A conviction for any type of felony, especially anything associated with terrorism, has the potential for prison time with having to carry the stigma of a convicted felon.

Any charges of terrorism often receive more press coverage, and a conviction for terrorism-related offenses can have serious consequences in your life, including applications for jobs, schools, or obtaining passports and visas. Keep in mind; these offenses are also often used in connection with other crimes and help to build the cases for investigators and prosecutors for those charged with stacked offenses.

If you are charged with the crime of terrorism in New York and have questions about your case, do not hesitate to contact us. All discussions about your case with one of our criminal defense attorneys are confidential. We have local criminal law offices in your area with experienced lawyers who have obtained favorable outcomes for countless individuals facing similar charges